On June 16, 1980, 16-year-old Cindy Ann McDermott was running
barefoot in her long bathrobe at 11:30 p.m., when she tripped
and fell on a raised section of the sidewalk in front of her
house at 1901 Louisa Street. As a result of her fall Cindy sustained
a fracture of the left femur and was taken to Hotel Dieu Hospital
where four (4) days later she died of complications described
by her treating physician as "fat embolism to lungs" and "bilateral
pneumothoraces." The decedent is survived by her one-year-old
son, Kevin McDermott.

A survivors' action and wrongful death action were instituted
against Minnie Jester, owner of the premises, her insurer and
the City of New Orleans, by McDermott's mother on behalf of Kevin
McDermott. The City answered denying liability and alleging that
plaintiff's contributory negligence and/or her assumption of
risk barred recovery. Defendants Jester and her insuror, Bellefonte
Insurance Company, settled.

After a judge trial on June 16, 1983, judgment was rendered on
August 31, 1983, dismissing plaintiff's action at her costs.
In his reasons for judgment, the trial judge said:

The sidewalk presented an unreasonable risk of harm to someone
making normal use of it and was therefore defective, for which
the City is strictly liable.
Jones v. City of Baton Rouge,
388 So.2d 737 (La. 1980).
But in racing back to her house, barefoot, at night, onto
a sidewalk she must have known was uneven, and even
considering her youth, decedent's conduct fell below the
standard to which she should have conformed for her own safety
and protection. . .

It is from this judgment plaintiff appeals. Plaintiff alleges
that: (1) the trial court erred in applying contributory negligence
when the liability imposed on the city is strict liability and,
(2) no evidence was introduced at trial to substantiate a finding
of negligence on the part of decedent.

Louisiana Civil Code Article 2317 provides, in pertinent part:

We are responsible, not only for the damage occasioned by our
own act, but for that which is caused by the act of persons for
whom we are answerable, or of the things which we have in our
custody. . .

This has been interpreted to mean that it is unnecessary for the
injured party seeking recovery under article 2317 to prove that
a particular act or omission by the defendant caused the injuries
complained of. To the contrary, the plaintiff only needs to prove
that the thing which caused the injury was in the care or custody
of the defendant; that the thing had a vice or defect — that
it occasioned an unreasonable risk of injury to another; and
that the injury was caused by the defect.
Loescher v. Parr,
324 So.2d 441, 446-447 (La. 1976).

It is well-established that the sidewalk in front of 1901 Louisa
Street was in the care or custody of the City of New Orleans
at the time of the accident. Furthermore, the sidewalk was defective
in that it was cracked and elevated several inches at the point
where Cindy tripped; this created an unreasonable risk of harm.
However, the mere existence of a defect does not result in automatic
recovery for the plaintiff; to the contrary, it must be shown
that the defect caused the injury complained of and that the
injury occurred through no fault of the victim.

Initially, we reiterate the language of the trial court's judgment:
"The sidewalk presented an unreasonable risk of harm to someone
making normal use of it and was therefore defective, for which
the City is strictly liable." (emphasis added). It is necessary
to note the language "normal use" in the judgment. Cindy was running
barefoot, in a long robe, on a dangerously uneven sidewalk, at
11:30 p.m., in an area she had lived for six years. Obviously
she was not making "normal use" of the sidewalk. The trial court
found enough evidence to show that Cindy did not conform to a
standard of care to which she should have for her own safety
and protection. We have reviewed the record and find the evidence
supports a finding that Cindy's actions were a contributing cause
of her injuries.

The Louisiana Supreme Court in
Dorry v. LeFleur,
399 So.2d 559 (La. 1981),
held that the question of whether contributory negligence
should be allowed as a defense to strict liability under Article
2317 is one best decided on a case-by-case basis. That decision
did provide a guiding principle, however, in holding that where
the policy considerations which traditionally require the imposition
of strict liability are lacking (i.e., where the defendant's
conduct concerns neither ultrahazardous activity nor abnormally
dangerous activity, nor liability of a manufacturer for its products,
nor the realization of profit from any of these), the resolution
of fault must encompass the victim's contributory negligence.

We find that under
Carpenter
the trial judge was proper in considering the
victim's actions as a defense to the City's liability.

The accident and injury complained of here occurred in June of
1980. Act Number 431 of 1979 amending Article 2323 of the Louisiana
Civil Code introduced the concept of comparative negligence,
abolishing contributory negligence as a complete bar to recovery.
This amendment, however, became effective August 1, 1980, with
the explicit declaration that "the provisions of the Act shall
not apply to claims arising from events that occurred prior to
the time this act becomes effective."
1979 La. Acts No. 431 § 4.
As a result, to compare fault is inapplicable in this case
and recovery is barred.

For the foregoing reasons, the judgment of the trial court is
affirmed.